The most common problems are failing to do the release in writing, or not properly describing what is being released. The results range from minor irritation to the loss of significant sums of money.
So I thought this month, we'd review some of the mechanics of Copyright and Reproduction Rights. No philosophy and no politics and I promise I won't preach.
We'll assume that your contract states that "except as otherwise provided", you maintain all Copyright in your images. We'll also assume that you are in the habit of reading Purchase Orders. There is more than one agency in Canada that still engages in the practice of trying to slip acquisition of your rights into small print on the back of a P/O.
The first thing to understand is that as a photographer you are not selling 80 square inches of photographic paper. Rather you are selling what the Copyright Act refers to as a license to reproduce an artistic work. Your contract, and invoice should both specify in writing the rights that are being provided to the client. Many photographers also include a statement on their contracts and invoices to the effect that the release of reproduction rights is conditional upon receipt of payment in full.
The first rule is that you should make a point of writing the type of release required in as many places as possible. If the release terms only appear on your invoice, an unscrupulous client could argue that this wasn't what was agreed to when he contracted the photograph. So be sure to the release terms in your quote, contract and invoice.
When writing the release there are some basic rules to follow. Do not use the phrases "buyout" or "all rights". These are confusing at best and have no reliable meaning in licensing terminology. Perhaps you meant that you were waiving your moral rights. Perhaps you meant to provide the client with the ability to publish in any situation, and have instead removed your own right to publish. "All rights" is often interpreted as meaning an "exclusive" transfer of copyright.
The correct term is license. Use the phrase "license to" or "licensed to". You can and should limit all licenses according to what the client has indicated is his/her requirement. You can limit a license by geography, usage, time and most any other term you can think of.
I would recommend the following format;
"In consideration of $_____ ABC Incorporated is licensed to reproduce our photograph (enter a description including file #) in any ABC Incorporated publication or advertisement produced and distributed exclusively within the province of Ontario, for a period of one year up to and including June 8, 1994"
This is quite a broad release, yet it does impose some limits. ABC can't resell your image. They can not publish in a brochure or ad which would be distributed outside Ontario. Why would you want to do this? Well imagine it's a nice generic high-tech shot which is properly model released. You could sell the same photo to a similar client under the identical conditions to be used exclusively in British Columbia.
Note that if you removed the reference to Ontario, this would become a worldwide license. You could change the word "distributed" to "published". This would permit worldwide distribution, but it is not a license to reproduce anywhere except at a printing press in Ontario.
You can play with this, but the key points are that this license says who, what, where, and when and why.
Who:
Who is licensed to reproduce. Agency, client, "client and their assigns". If you
use the phrase "heirs and assigns", the client can resell their right of reproduction
to someone else.
What: Describe the image or images they are licensed to reproduce.
Where: This can be geographic, and/or publication specific. Examples would be a
province or provinces, a country or a continent. You could specify "in the first
and all subsequent printing of the book Apple Orchards I have known. You could also
specify a magazine or magazines by title.
When: Is there a time limit on the release? Is it a one-time release?
A limit on the number of reproductions is also a form of when.
Why: Generally a contract should describe what you receive in return for what
is being sold. This is normally "In consideration of X Dollars".
You can limit the license in very specific ways. For instance you could license "reproduction in a single marketing brochure (press run not to exceed 10,000)", or for "one-time reproduction in the January issue of Swine Breeder's Monthly." This means that your shot of an Ayreshire pig doesn't bec the back of a P/O.
The first thing to understand is that as a photographer you are not selling 80 square inches of photographic paper. Rather you are selling what the Copyright Act refers to as a license to reproduce an artistic work. Your contract, and invoice should both specify in writing the rights that are being provided to the client. Many photographers also include a statement on their contracts and invoices to the effect that the release of reproduction rights is conditional upon receipt of payment in full.
The first rule is that you should make a point of writing the type of release required in as many places as possible. If the release terms only appear on your invoice, an unscrupulous client could argue that this wasn't what was agreed to when he contracted the photograph. So be sure to the release terms in your quote, contract and invovely transferring part or all of your Copyright to the licensee for the period described in your license. If no time frame is mentioned, then the transfer is forever.
Think very carefully about what the words "exclusive right to reproduce in advertising materials for a period of one year". That includes you. For one year, the photographer could not use the image in a Creative Source page.
The value of reproduction rights is in many ways a function of the intended use. If you are shooting a black and white head shot for publicity, you are not going to receive the same compensation as for the principal photo in IBM's national ad campaign. One recent trend in the United States has attempted to address this point. The payment for rights release is a percentage of the media buy. In many ways this is easier to police than you might imagine, as page rates for audited magazines are readily available.
Overall, the key is to be straight forward and precise. If your license terms appear in writing in all your communications with the client, it becomes very difficult for the client to plead that he didn't understand. If the client has a problem with an accurately written description of the use that they have described to you, it may be time to renegotiate based on the real use that they intend.
One final point. When your image is reproduced by the client, he is actually protecting himself by publishing a Copyright notice with your work. It's not a question of promotion of the photographer. The Copyright notice means that no one can look at your client's brochure and say "Gee I'll bet that picture is public domain. I'm going to scan it and use it in my brochure."